[Federal Register Volume 66, Number 106 (Friday, June 1, 2001)]
[Proposed Rules]
[Pages 29741-29744]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-13786]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 926

[SPATS No. MT-003-FOR]


Montana Regulatory Program

AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.

ACTION: Proposed rule; reopening and extension of public comment period 
and opportunity for public hearing on proposed amendment.

-----------------------------------------------------------------------

SUMMARY: The Office of Surface Mining Reclamation and Enforcement (OSM) 
is announcing receipt of revisions and additional explanatory 
information pertaining to a previously proposed amendment to the 
Montana regulatory program (hereinafter, the ``Montana program'') under 
the Surface Mining Control and Reclamation Act of 1977 (SMCRA). Montana 
proposes revisions to Title 26, Chapter 4, of the Administrative Rules 
of Montana (ARM) and additional explanatory information about surface 
water baseline monitoring requirements, conditions of the permit, 
temporary waste impoundments, dam spillway specifications, and 
alternate underdrain systems. Montana intends to revise its program to 
be consistent with the corresponding Federal regulations, incorporate 
the additional flexibility afforded by the revised Federal regulations, 
clarify ambiguities, and improve operational efficiency.

DATES: We will accept written comments on this amendment until 4 p.m., 
m.d.t. July 2, 2001. If requested, we will hold a public hearing on the 
amendment on June 26, 2001. We will accept requests to speak until 4 
p.m., m.d.t. on June 18, 2001.

ADDRESSES: You should mail or hand deliver written comments and 
requests to speak at the hearing to Guy Padgett at the address listed 
below. You may review copies of the Montana program, this amendment, a 
listing of any scheduled public hearings, and all written comments 
received in response to this document at the addresses listed below 
during normal business hours, Monday through Friday, excluding 
holidays. You may receive one free copy of the amendments by contacting 
OSM's Casper Field Office.

Guy Padgett, Director, Casper Field Office, Office of Surface Mining 
Reclamation and Enforcement, 100 East B Street, Room 2128, Casper, WY 
82601-1918, Telephone: (307) 261-6550
Neil Harrington, Acting Chief, Industrial and Energy Minerals Bureau, 
Montana Department of Environmental Quality, 1520 E. Sixth Ave., P.O. 
Box 200901, Helena, MT 59620-0901, Telephone: (307) 444-4973

FOR FURTHER INFORMATION CONTACT: Guy Padgett, Telephone: (307) 261-
6550, Internet address: [email protected].

SUPPLEMENTARY INFORMATION:

I. Background on the Montana Program
II. Description of the Proposed Amendment

[[Page 29742]]

III. Public Comment Procedures
IV. 10 Procedural Determinations

I. Background on the Montana Program

    On April 1, 1980, the Secretary of the Interior conditionally 
approved the Montana program. You can find background information on 
the Montana program, including the Secretary's findings, the 
disposition of comments, and conditions of approval of the Montana 
program in the April 1, 1980, Federal Register (45 FR 21560). You can 
also find later actions concerning Montana's program and program 
amendments can be found at 30 CFR 926.15, 926.16, and 926.30.

II. Proposed Amendment

    By letters dated February 1, 1995, and February 28, 1995, Montana 
sent us a proposed amendment to its program (Administrative Record Nos. 
MT-12-01 and MT-12-05) under SMCRA (30 U.S.C. 1201 et seq.). Montana 
sent the proposed amendment in response to letters dated July 2, 1985; 
May 11, 1989; and March 29, 1990 (Administrative Record Nos. MT-60-01, 
MT-60-04, and MT-60-07) that OSM sent to Montana in accordance with 30 
CFR 732.17(c); in response to the required program amendments at 30 CFR 
926.16(b), (c), (d), (e)(2), (e)(3), (e)(4), (e)(5), (e)(6), (e)(7), 
(e)(8), (f), (h), (i), and (j); and at its own initiative.
    Montana originally proposed to revise: ARM 26.4.301, definitions; 
ARM 26.4.303, legal, financial, compliance, and related information; 
ARM 26.4.304, baseline information: environmental resources; ARM 
26.4.308, operations plan; ARM 26.4.314, plan for protection of the 
hydrologic balance; ARM 26.4.321, transportation facilities plan; ARM 
26.4.404, review of application; ARM 26.4.405, findings and notice of 
decision; ARM 26.4.405A, improvidently issued permits: general 
requirements; ARM 26.4.405B, improvidently issued permits: revocation; 
ARM 26.4.407, conditions of permit; ARM 26.4.410, permit renewal; ARM 
26.4.501A, final grading requirements; ARM 26.4.505, burial and 
treatment of waste materials; ARM 26.4.519A, thick overburden and 
excess spoil; ARM 26.4.524, signs and markers;
ARM 26.4.601, general requirements for road and railroad loop 
construction; ARM 26.4.602, location of roads and railroad loops; ARM 
26.4.603, embankments; ARM 26.4.604, hydrologic impacts of roads and 
railroad loops; ARM 26.4.623, blasting schedule; ARM 26.4.633, water 
quality performance standards; ARM 26.4.634, reclamation of drainages; 
ARM 26.4.638, sediment control measures; ARM 26.4.639, sedimentation 
ponds and other treatment facilities; ARM 26.4.642, permanent and 
temporary impoundments; ARM 26.4.645, groundwater monitoring; ARM 
26.4.646, surface water monitoring; ARM 26.4.702, redistribution and 
stockpiling of soil; ARM 26.4.711, establishment of vegetation; ARM 
26.4.721, eradication of rills and gullies; ARM 26.4.724, use of 
revegetation comparison success standards; ARM 26.4.726, vegetation 
production, cover, diversity, density, and utility requirements; ARM 
26.4.821, alternate reclamation: submission of plan; ARM 26.4.825, 
alternate reclamation: alternate revegetation; ARM 26.4.924, disposal 
of underground development waste: general requirements; ARM 26.4.927, 
disposal of underground development waste: durable rock fills; ARM 
26.4.930, placement and disposal of coal processing waste: special 
application requirements; ARM 26.4.932, disposal of coal processing 
waste; ARM 26.4.1001, application requirements;
ARM 26.4.1001A, notice of intent to prospect; ARM 26.4.1002, 
information and monthly reports; ARM 26.4.1005, drill holes; ARM 
26.4.1006, roads and other transportation facilities; ARM 26.4.1007, 
grading, soil salvage, storage, and redistribution; ARM 26.4.1009, 
diversions; ARM 26.4.1011, hydrologic balance; ARM 26.4.1014, test 
pits: application requirements, review procedures, bonding, and 
additional performance standards; ARM 26.4.1116, bonding: criteria and 
schedule for release of bond; ARM 26.4.1116A, reassertion of 
jurisdiction; ARM 26.4.1141, designation of lands unsuitable: 
definition; ARM 26.4.1206, notices, orders of abatement and cessation 
orders: issuance and service; and ARM 26.4.1212, point system for civil 
penalties and waivers.
    We announced receipt of the proposed amendment in the March 15, 
1995, Federal Register (60 FR 13932; Administrative Record No. MT-12-
12). In that Federal Register, we opened the public comment period and 
provided an opportunity for a public hearing or meeting on the 
amendment's adequacy. We did not hold a public hearing or meeting 
because no one requested one. The public comment period ended on April 
14, 1995.
    During our review of the amendment, we identified rules requiring 
clarification prior to making an evaluation of the proposed revisions. 
Those rules requiring clarification were: ARM 26.4.301(78), the 
definition of ``owned or controlled;'' ARM 26.4.303, legal, financial, 
compliance, and related information; ARM 26.4.304, baseline 
information: environmental resources; ARM 26.4.314, plan for the 
protection of the hydrologic balance; ARM 26.4.404, review of 
application; ARM 26.4.407, conditions of a permit; ARM 26.4.410, permit 
renewal; ARM 26.4.505 and 26.4.510, burial and treatment of waste 
materials and disposal of offsite-generated waste and fly ash; ARM 
26.4.519A, thick overburden and excess spoil; ARM 26.4.603 and 
26.4.639, sedimentation ponds and other treatment facilities; ARM 
26.4.645 and 26.4.646, groundwater and surface water monitoring; ARM 
26.4.721, eradication of rills and gullies; ARM 26.4.821, alternate 
reclamation: submission of plan; ARM 26.4.924, disposal of underground 
development waste: general requirements; ARM 26.4.927, disposal of 
underground development waste: durable rock fills; and ARM 26.4.1001 
through 26.4.1007 and 26.4.1014, prospecting.
    We notified Montana of those rules requiring clarification by 
letter dated October 17, 1995 (Administrative Record No. 12-16). 
Montana responded with further explanation in a letter dated February 
6, 1996 (Administrative Record No. MT-12-19). Following receipt of 
Montana's February 6, 1996, letter, we identified concerns with ARM 
26.4.304, baseline information: environmental resources; ARM 26.4.404, 
review of application; ARM 26.4.505 and 26.4.510, burial and treatment 
of waste materials and disposal of off-site generated waste and fly 
ash; ARM 26.4.519A, thick overburden and excess spoil; ARM 26.4.639, 
sediment ponds and other treatment facilities; ARM 26.4.821, alternate 
reclamation; ARM 26.4.924 and 26.4.927, disposal of underground 
development waste; and ARM 26.4.1014, prospecting. We notified Montana 
of these concerns by letter dated July 10, 1997 (Administrative Record 
No. MT-12-20).
    Meanwhile, at the same time we were reviewing this amendment, 
Montana made subsequent changes to some of the rules contained in this 
amendment and submitted them in another amendment dated March 5, 1996 
(SPATS No. MT-018-FOR; Administrative Record No. MT-15-01). Those rules 
were: ARM 26.4.410, permit renewal, ARM 26.4.1001, prospecting permit 
requirement; and ARM 26.4.1001A, notice of intent to prospect. OSM and 
Montana subsequently decided to withdraw the prospecting and permit 
renewal rules from SPATS No. MT-003-FOR and consider them in SPATS No. 
MT-018-FOR (Administrative Record Nos. MT-12-21 and MT-15-14). These 
withdrawn rules addressed the

[[Page 29743]]

required program amendments at 30 CFR 926.16(f), (h), (i), and (j).
    Montana responded by letter dated July 17, 2000 (Administrative 
Record No. MT-12-23), that it would not submit further revisions to 
SPATS No. MT-003-FOR. Montana requested that OSM proceed with the final 
rule Federal Register notice. Montana stated that it would address the 
existing deficiencies in this amendment in a new submission.
    Following receipt of the July 17, 2000, letter, OSM proceeded 
writing the final rule Federal Register notice on MT-003-FOR. However, 
during the process, OSM decided to request a meeting with Montana to 
discuss the unresolved issues in MT-003-FOR. The meeting was held at 
the Montana Department of Environmental Quality (DEQ), Helena, MT, on 
February 27, 2001. Because the public was not notified of the meeting 
beforehand, OSM is making available the meeting minutes (Administrative 
Record No. MT-12-24) from that meeting by this Federal Register notice. 
During the February 27, 2001, meeting, OSM and the Montana DEQ decided 
that some issues were, in fact, resolvable due to a re-interpretation 
of Montana's responses and/or a subsequent revision of Montana's rules.
    In response to discussions at the February 27, 2001, meeting, 
Montana has now submitted subsequent rule revisions and/or explanatory 
information by letter dated May 15, 2001 (Administrative Record No. MT-
12-25). Montana proposes additional explanatory information concerning 
the lack of acid-forming materials in the Montana coal fields to 
address the issue with ARM 26.4.304(6)(b)(ii)(B). Montana proposes 
editorial changes to ARM 26.4.407(4). Montana proposes new language at 
ARM 26.4.505(5) to prohibit acid, acid-forming, toxic, or toxic-forming 
wastes from being used in an impoundment. Montana proposes new language 
at ARM 26.4.505(7) to provide that the same notification requirements 
concerning potential hazards at waste disposal sites also pertain to 
temporary waste impoundments. Montana proposes new language at ARM 
26.4.639 address the construction of a single spillway and to state 
that an excavation requires no spillway. Montana proposes to delete 
subsection at ARM 26.4.924(15) which OSM disapproved in the August 19, 
1992, Federal Register notice, and to delete cross-reference to it at 
ARM 26.4.927(3)(a).

III. Public Comment Procedures

Written Comments

    Send your written comments to OSM at the address given above. Your 
written comments should be specific, pertain only to the issues 
proposed in this rulemaking, and include explanations in support of 
your recommendations. In the final rulemaking, we will not necessarily 
consider or include in the Administrative Record any comments received 
after the time indicated under DATES or at locations other than the 
Casper Field Office.

Electronic Comments

    Please submit Internet comments as an ASCII file avoiding the use 
of special characters and any form of encryption. Please also include 
``Attn: SPATS No. MT-003-FOR'' and your name and return address in your 
Internet message. If you do not receive a confirmation that we have 
received your Internet message, contact the Casper Field Office at 
(307) 261-6550.

Availability of Comments

    We will make comments, including names and addresses of 
respondents, available for public review during normal business hours. 
We will not consider anonymous comments. If individual respondents 
request confidentiality, we will honor their request to the extent 
allowable by law. Individual respondents who wish to withhold their 
name or address from public review, except for the city or town, must 
state this prominently at the beginning of their comments. We will make 
all submissions from organizations or businesses, and from individuals 
identifying themselves as representatives or officials of organizations 
or businesses, available for public review in their entirety.

Public Hearing

    If you wish to speak at the public hearing, contact the person 
listed under FOR FURTHER INFORMATION CONTACT by 4 p.m., m.d.t. on June 
18, 2001. If you are disabled and need special accommodations to attend 
a public hearing, contact the person listed under FOR FURTHER 
INFORMATION CONTACT. We will arrange the location and time of the 
hearing with those persons requesting the hearing. If no one requests 
an opportunity to speak, we will not hold the hearing. To assist the 
transcriber and ensure an accurate record, we request, if possible, 
that each person who speaks at a public hearing provide us with a 
written copy of his or her comments. The public hearing will continue 
on the specified date until everyone scheduled to speak has been heard. 
If you are in the audience and have not been scheduled to speak and 
wish to do so, you will be allowed to speak after those who have been 
scheduled. We will end the hearing after everyone scheduled to speak 
and others present in the audience who wish to speak, have been heard.

Public Meeting

    If only one person requests an opportunity to speak, we may hold a 
public meeting rather than a public hearing. If you wish to meet with 
us to discuss the amendment, please request a meeting by contacting the 
person listed under FOR FURTHER INFORMATION CONTACT. All such meetings 
are open to the public and, if possible, we will post notices of 
meetings at the locations listed under ADDRESSES. We will make a 
written summary of each meeting a part of the Administrative Record.

IV. Procedural Determinations

Executive Order 12630--Takings

    This rule does not have takings implications. This determination is 
based on the analysis performed for the counterpart Federal 
regulations.

Executive Order 12866--Regulatory Planning and Review

    This rule is exempted from review by the Office of Management and 
Budget (OMB) under Executive Order 12866.

Executive Order 12988--Civil Justice Reform

    The Department of the Interior has conducted the reviews required 
by section 3 of Executive Order 12988 and has determined that, to the 
extent allowable by law, this rule meets the applicable standards of 
subsections (a) and (b) of that section. However, these standards are 
not applicable to the actual language of State regulatory programs and 
program amendments since each such program is drafted and promulgated 
by a specific State, not by OSM. Under sections 503 and 505 of SMCRA 
(30 U.S.C. 1253 and 1255) and the Federal regulations at 30 CFR 730.11, 
732.15, and 732.17(h)(10), decisions on proposed State regulatory 
programs and program amendments submitted by the States must be based 
solely on a determination of whether the submittal is consistent with 
SMCRA and its implementing Federal regulations and whether the other 
requirements of 30 CFR Parts 730, 731, and 732 have been met.

Executive Order 13132--Federalism

    This rule does not have Federalism implications. SMCRA delineates 
the

[[Page 29744]]

roles of the Federal and State governments with regard to the 
regulation of surface coal mining and reclamation operations. One of 
the purposes of SMCRA is to ``establish a nationwide program to protect 
society and the environment from the adverse effects of surface coal 
mining operations.'' Section 503(a)(1) of SMCRA requires that State 
laws regulating surface coal mining and reclamation operations be ``in 
accordance with'' the requirements of SMCRA. Section 503(a)(7) requires 
that State programs contain rules and regulations ``consistent with'' 
regulations issued by the Secretary pursuant to SMCRA.

National Environmental Policy Act

    Section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that a 
decision on a proposed State regulatory program provision does not 
constitute a major Federal action within the meaning of section 
102(2)(C) of the National Environmental Policy Act (42 U.S.C. 
4332(2)(C)). A determination has been made that such decisions are 
categorically excluded from the NEPA process (516 DM 8.4.A).

Paperwork Reduction Act

    This rule does not contain information collection requirements that 
require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 
3507 et seq.).

Regulatory Flexibility Act

    The Department of the Interior has determined that this rule will 
not have a significant economic impact on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). 
The State submittal that is the subject of this rule is based upon 
counterpart Federal regulations for which an economic analysis was 
prepared and certification made that such regulations would not have a 
significant economic effect upon a substantial number of small 
entities. Accordingly, this rule will ensure that existing requirements 
previously promulgated by OSM will be implemented by the State. In 
making the determination as to whether this rule would have a 
significant economic impact, the Department relied upon the data and 
assumptions for the counterpart Federal regulations.

Small Business Regulatory Enforcement Fairness Act

    This rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act. This rule: (a) Does not 
have an annual effect on the economy of $100 million; (b) Will not 
cause a major increase in costs or prices for consumers, individual 
industries, geographic regions, or Federal, State or local governmental 
agencies; and (c) Does not have significant adverse effects on 
competition, employment, investment, productivity, innovation, or the 
ability of U.S. based enterprises to compete with foreign-based 
enterprises. This determination is based upon the fact that the State 
submittal which is the subject of this rule is based upon counterpart 
Federal regulations for which an analysis was prepared and a 
determination made that the Federal regulation was not considered a 
major rule.

Unfunded Mandates

    This rule will not impose a cost of $100 million or more in any 
given year on any governmental entity or the private sector.

List of Subjects in 30 CFR Part 926

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: May 23, 2001.
James Fulton,
Acting Regional Director, Western Regional Coordinating Center.
[FR Doc. 01-13786 Filed 5-31-01; 8:45 am]
BILLING CODE 4310-05-P